6 3 Servitudes

(Inst.Gai.2.22.-39-, Inst.2.3„ D.8.I., 2, 3., 6., C.3.34.)

A servitude was a proprietary tight involving the use—such as a right of way—of the property of another person. Such property can be described as 'the servient thing’ because it was subject to a burden in favour of the holder of the servitude.

162 The Law of Property and Inheritance

a right of way). Servitudes could be personal or praedial (see Diagram 6.2). The latter (rights over land) approximated to easements and profits in English law and were the only servitudes to be recognized as such in the Republic (see Du Plessis, 'Property', 185-6, 188). Personal servitudes, of which usufruct was easily the most important, were possibly not recognized as servitudes until after the classical period (possibly only in Justinianic law). Their late recognition as servitudes is hardly sur­prising, given the uncertainty among classical jurists whether usufruct was really a form of ownership rather than a servitude. See Hausmaninger, Gamauf, and Sheets, Casebook, 244-5.

Diagram 6.2 A conceptual map of the Roman law of servitudes

6.3.1 General principles

Servitudes, whatever their type, were subject to a number of general principles.

6.3.1.1 No servitude over your own property

A servitude was a right in another person’s property: a person could not be the benefi­ciary of a servitude over his own property. It followed that if a person who was enti­tled to a servitude over another's land later acquired the land, the servitude ceased:

Gaius, Provincial Edict, book 7: Praedial servitudes are extinguished by merger if the same person becomes owner of both estates.

If the ownership of the former properties was later divided again, the extinguished servitude did not thereby revive, as a general rule.

6.3.1.2 Servitudes could not be possessed

Since servitudes were incorporeal things, it followed that they could not be pos­sessed. But they could be enjoyed and were protected by interdicts that were mostly a modified form of the possessory ones, so that in practice servitudes were as bene­ficial as if they had been possessed.

6.3.1.3 Servitudes must be beneficial

Servitudes had to benefit, in a material sense, the persons entitled to them:

I’omponius, Sabinas, book 33: Whenever a servitude is found not to be for the benefit of an individual or an estate, then it is of no effect in that no neighbor has any interest in it, as, for example, a servitude preventing you from walking across or occupying your own land. (D.8.1.15pr.)

It followed that a servitude that was created purely to upset or irritate the servient owner was of no effect. Exceptionally, a servitude could be valid even if it did not benefit the person entitled, providing that it had some economic purpose,

6.3.1.4 Servitudes must be exercised reasonably

Since servitudes constituted a serious restriction of the ownership of the servient owner, the beneficiary had to exercise his right in a reasonable manner. Discussing the grant to a man of an unrestricted right of way over another's estate, Celsus says:

Celsus, Digest, book 5: He may walk and drive across it without restriction, that is to say, across any part of the estate he chooses, so long as he does so in a reasonable manner... (D.8.1.9.)

6.3.1.5 Servitudes could not impose active duties

Pomponios, Sabinus, book 33: It is not in keeping with the nature of servitudes that the servi­ent owner be required to do something, such as to remove trees to make a view more pleas­ant or, for the same reason, to paint something on his land. He can only be required to allow something to be done or to refrain from doing something.

Servitudes were negative in content as far as the servient owner was concerned: he did not have to do anything, as a general rule, but had to refrain from doing things, for example, if A had a right of way over B's land, B had to refrain from interfering with that right. But there was an important exception to the general rule. If neigh­bours shared a common wall, each had a duty to support the other's wall. That meant that a neighbour had to keep his side of the wall in good repair (unless he abandoned the property):

Ulpian, Edict, book 17: However... a man can claim the right to compel his opponent to repair a wall, so that it can support the load. On the other hand, Labeo writes that this servitude does not burden the individual, but the property; consequently, the owner is free to abandon the property. (13.8.5.6.2.)

6.3.2 Praedial servitudes

Ulpian, Institutes, book 2: These servitudes are called praedial because they cannot be created unless there is an estate. In fact, no one can acquire either a rustic or an urban praedial servitude, nor can anyone be bound to honor such a servitude, unless he himself has an estate. (D.8.4.1.1.)

Praedial servitudes were the rights that a person had by virtue of ownership of land (the dominant tenement) over the land of another (the servient tenement). (See Hausmaninger, Gamauf, and Sheets, Casebook, 246-55.) Such rights attached to the land, not to the person—they ran with the land and benefited whoever was the dominant tenement owner:

Paul, Sabinus, book IS: If one estate is servient to another, the servitude passes with the land on the sale of either of the estates. If a building is servient to an estate or an estate to a build­ing, the same rule applies. (D.8.4,12.)

The successors in title of the servient and dominant owners were affected because praedial servitudes were regarded as perpetual, i.e. they could not be limited by time (although they could terminate in other ways). Since a praedial servitude involved the burdening of one tenement for the benefit of another, it followed that the tene­ments had to be close together.

Praedial servitudes were classified as either urban or rustic. The distinction was based not so much on locality as on the purpose of the servitude. If it was con­cerned with the use of a building, the servitude was urban; if with the use of land, it was rustic. Unfortunately, there is some inconsistency in the texts—a servitude is occasionally described as rustic by one jurist, urban by another. Did it matter very much whether a servitude was regarded as urban or rustic? Certainly—some rustic servitudes (possibly all) were res mancipi; urban ones were not.

6.3.2.1 Urban praedial servitudes

Gaius, Provincial Edict, book 7: Urban praedial servitudes are as follows: the right to build higher and obstruct a neighbor's light or the right to prevent such building; the right to discharge eavesdrip on to a neighbor's roof or vacant ground or the right to prevent such discharge; the right to insert beams into a neighbor's wall; and, lastly, the right to have a roof or other structure projecting, as well as other similar rights. (D.8.2.2.)

The previous list was not exhaustive. 'Other similar rights' included the right of support from a common wall, the right to lay and maintain drains on a neighbour's land, or to have one's view unobstructed. The text refers to some servitudes in the alternative, e.g. the right to build higher (altius tollendi) 'or the right to prevent such building'. Such texts suggest that some servitudes gave rise to the possibility of 'counter-servitudes'. The term is rather misleading because these counter-servitudes were most probably a form of release (total or partial) from existing servitudes. For example, suppose A wished to construct a building that would obstruct B's general right to reasonable light. He could only legally do so if he acquired from B the servi­tude altius tollendi.

Although most of the urban servitudes originated after the rustic ones, their importance was immense.

6.3.2.2 Rustic praedial servitudes

Ulpian, Institutes, book 2: The following are rustic praedial servitudes: iter, actus, via, and aquae ductus. Iter is the right permitting a man to go on foot and to walk, but not to drive a beast of burden as well. Actus is the right to drive either a beast of burden or a vehicle. Thus, a man who has an iter does not have an actus, but a man who has an actus has an iter as well, even although the latter does not give the right to drive a beast of burden. Via is the right to go on foot, to drive, and to walk; in fact, via embraces both iter and actus. Aquae ductus is the right to channel water across another's land. (D.8.3.1pr.)

Predating the Twelve Tables, these were the oldest of all servitudes. All four were res mancipi and were concerned with the use of land for a specific purpose. The precise content and exercise of these servitudes was regulated in remarkable detail. For example:

Gaius, Provincial Edict, book 7: As regulated by the Twelve Tables, the width of a via is to be eight feet where the road is straight, and sixteen feet... where there is a bend in the road. (D.8.3.8.)

Elsewhere, we learn that a man who is conveyed on a sedan chair or in a litter is regarded as going on foot, but not driving, and that via gave a man the right to drag things and also to carry a spear upright, provided that he did not thereby damage crops (D.8.3.7pr.).

The right to channel water over another's land (aquae ductus) was possibly the most important of the rustic servitudes. Not surprisingly, the extent of the right led to considerable legal uncertainty. For example, was the water when channelled owned by the owner of the dominant tenement? The prevailing view appears to have been that since flowing water was in the category of res communes (see 6.1.2.1) it could not be owned privately while it was in flow (see extensively Bannon, Gardens and Neighbors, ch.

Pomponius, Quintus Mucins, book 31:... when a man has a watercourse across another man's estate, the supply of water being used daily or in the summer or over longer intervals, he is permitted to lay in the channel a conduit of his own, be it of earthenware or any other kind of material, to obtain a wider diffusion of the water. He is also permitted to construct whatever he wishes in the channel, providing he does not make the watercourse less advantageous to the servient owner. (D.8.3.15.)

There were some later additions to the original four rustic servitudes. All, possibly, were res mancipi, and approximated to profits in English law—they allowed the tak­ing of natural produce from the servient land, e.g. the right to dig for lime or sand, or to pasture or water cattle on another's land. The extent of these servitudes was the subject of much detailed regulation and juristic comment. For example, what was the position when more than the permitted number of animals was watered on the servient tenement? Could the whole herd be stopped? There was some disagree­ment among the jurists, as the following passage by Ulpian suggests:

Ulpian, Edict, book 70: Trebatius says that when a greater number of herd animals are watered than ought to be watered, the whole herd may be prevented with impunity, because the addition of herd animals to a herd that has the right to drink destroys the whole right. But Marcellus says that if anyone has the right of watering a herd and brings up more herd ani­mals, he is not to be prevented from watering all of them, which is true, because herd animals can be separated. (D.43.20.1.18.)

6.3.3 Personal servitudes

There were four personal servitudes, of which usufruct was by far the most impor­tant. Personal servitudes attached to a person, not to land; and they were of lim­ited duration, not perpetual. They could be created over movables as well as land. And their purpose differed markedly from that of praedial servitudes: the personal servitude was frequently created by will as a means of settling property within the testator's family. The legacy of a usufruct of property by way of a life interest to a widow or other family member (such as an unmarried daughter) was a common occurrence in Roman wills.

6.3.3.1 Usufruct

Usufruct was the right to use another's property—without impairing its substance— and to take its fruits, (see Hausmaninger, Gamauf, and Sheets, Casebook, 256-60). Despite the duty to preserve the property, usufruct was considered to be a valuable right.

(a) The general position of the usufructuary Strictly, he lacked possession but had the right to use the property and to take its fruits for the period agreed by the owner. Often, a life interest would be granted to the usufructuary; but the period could be shorter. It could not last beyond the life of the usufructuary. At the outset

of the usufruct, he had to give security that he would take prudent care of the prop­erty, which had to be restored (on the termination of the usufruct) substantially unimpaired, allowing for reasonable wear and tear. This meant that if the property was destroyed or clearly altered in character, the usufruct ended even though the agreed period had not yet expired.

(b) Use of the property The usufructuary was entitled to occupy and control the property but, because of the duty to return the property unimpaired, he had to maintain it in the state in which it was received by him (cf. D.7.1.1.). If the property consisted of buildings, they would have to be kept in good repair. The usufructuary could not use the property in an unauthorized way; nor could he alter its character, even if he thereby improved it:

Ulpian, Sabinus, book IS: If the usufruct of a house is left as a legacy... the usufructuary is allowed to put in windows. He may also paint the walls and add frescoes, marble slabs, statu­ettes, and anything else designed to improve the appearance of the house. However, he is not permitted to alter the rooms or throw them together or divide them or to reverse the front and back entrances or to open up retreats or to alter the entrance hail or to change the layout of the pleasure gardens. In short, the usufructuary can improve what he finds, so long as he does not change the character of the house. (0.7.1.13.7.)

The texts inevitably show inconsistencies between the jurists in their opinions as to whether work carried out by the usufructuary was an alteration rather than improvement. Indeed, some jurists seem to deny a right even to make what appear to be basic improvements—e.g. Neratius:

Neiatius, Parchments, book 3: The usufructuary is not entitled to replaster walls which have been left in a rough condition, because even although he would make the position of the owner better by improving the building, he still cannot do this by virtue of his rights as a usufructuary. It is one thing for him to maintain what he has received and another to make some alteration. (D.7.1.44.)

The duty to maintain the property varied according to the circumstances and the nature of the property. If it was an agricultural estate, it had to be kept in cultiva­tion; that required the usufructuary to sow crops, for example, or plant trees where the usufruct comprised an orchard or a timber estate. The Digest contains remark­ably detailed rules on cutting wood and felling timber, distinguishing inter alia between different types of husbandry and plantation. The rule relatingto cutting of timber or mining of natural resources seems to have been that a usufructuary could enjoy the benefits of these 'fruits’ if they had been used as a source of income by the previous owner (cf. D.7.1.13.5.-6.). The usufructuary's exploitation of these fruits was, however, restricted since the essence of the object could not be substantially altered by it. The distinctions have survived to some extent in modern law: e.g. Article 591 of the French Civil Code allows the usufructuary to benefit from forest trees which have been subjected to coupes reglees (regulated cuttings). If the usufruct was over a flock or herd of animals, there was a duty to maintain numbers:

Ulpian, Sabinus, book 17: But if the usufruct of a flock or herd is left as a legacy, the usufructu­ary will be obliged to keep up the numbers of the flock out of the young that are subsequently born into it, that is, to allocate others to take the place of dead [Pomponius, Sabinus, book: 5] [69]: or worthless animals, the result being that the latter, after they have been replaced, become the property of the usufructuary, so as to avoid the outcome of the operation being a gain on the part of the bare owner. (D.7.1.68.2.,69.)

The standard of care expected of the usufructuary was that of the bonus paterfa­milias. Hence, the usufructuary had to show a high degree of care—he would be liable for any deterioration or damage to the property if caused by his negligence, however slight.

In his use of the property, the usufructuary was entitled to hire out or sell the enjoyment of the usufruct.·

Ulpian, Sabinus, book 17: The usufructuary can either enjoy the subject matter of the usufruct himself or grant the enjoyment of it to another, or he can let for hire or sell the enjoyment; for a man who lets is making use of his right, as is one who sells. (D. 7.1.12.2.)

However, although the usufructuary could transfer 'enjoyment', he could not transfer the usufruct itself since it was inalienable: he remained the usufructuary until the termination of the usufruct.

(c) Fruits Perhaps the usufructuary's most Important benefit was the right to take and own the fruits of the property subjected to the usufruct. What were fruits? They can be broadly classified as 'civil' or 'natural'. Civil fruits consisted of the income from hiring out the property comprised in the usufruct, e.g. the earnings of slaves, or rent from land. Natural fruits comprised the ordinary, natural produce of the property. Minerals were not regarded as fruits unless the land was used for quarrying or the production of minerals:

Ulpian, Sabinus, hook 17: If the land has stone quarries on it, and the usufructuary wishes to hew stone, or if there are chalk or sand pits on it, Sabinus holds that the usufructuary may make use of all of these as a careful head of a household would do. I consider this to be the correct view. (D.7.1.9.2.)

However, juristic interpretation contributed to the emergence of the rule that new mines could be opened providing that the character of the land was not thereby altered. Thus, a new mine could not be opened if the usufructuary thereby appro­priated a part of the land 'required for something else' or if he prejudiced 'the cultivation of the land' (D.7.1.13.5.). It seems that this rule was applied flexibly in the Empire, if not before, in order that Rome's mineral wealth should be fully exploited.

. Difficulties regarding the ownership of fruits arose in usufruct over slaves and animals. For example:

Ulpian, Sabinus, book 68: The question was raised in times gone by whether the offspring of a female slave belonged to the usufructuary. However, the opinion of Brutus, that the rules of usufruct are not applicable to this case, has prevailed; the fact is that one human being cannot be treated as being among the fruits of another. (D.7,1.68pr.)

This justification by Brutus—a statesman and jurist of the second century BC—has been much debated. It adopts the 'noble' view that the human personality of the slave distinguishes him from other types of property; but it is arguable that the exception simply reflects the economic realities, namely that the slave-child was far too valuable an asset to belong to the usufructuary rather than the owner. Birks, P., 'An Unacceptable Face of Human Property', in New Perspectives, 61 ff., takes an intermediateposition.· 'The concession to humanity went no further than this, that the law would not countenance a rule which implied that slaves might be farmed... Offspring are not fructus because, differently from livestock, the fertility of slaves is not callously managed in the interests of productivity' (69).

What if a slave acquired property during the course of the usufruct—to whom did it belong? In the absence of an express provision agreed on the creation of the usufruct, the basic position was that the property belonged to the owner unless it was acquired on behalf of the usufructuary. For example, the usufructuary kept any payment for the hiring of the slave’s services (see earlier). As regards inter vivos gifts (or legacies) made to the slave during the usufruct, the rule was:

Glpian, Sabinin, book }8:... if something is left or given to the slave out of consideration for the usufructuary, the slave will acquire for him; if it was out of consideration for the bare owner, the slave will acquire for him; if it was out of consideration for the slave himself, he will acquire for his owner... (I).7.1.22.)

1'he young of animals (in a herd or flock held under a usufruct) posed problems for the jurists. Some thought that the rule should be the same as for children of slave women, applying the concept that fruits could not have the same form as the 'producer' of the fruit. But the early Sabinians regarded the young of animals as belonging to the usufructuary, and that view eventually prevailed. Nevertheless, a question arose as to the extent of the usufructuary's rights since he had a duty to maintain the numbers of a flock or herd. If a lamb was born in a flock that was below strength, to whom did it belong? The view prevailed that ownership of the young was in suspense until the relevant replacements had been made (see Watson, A., ' The Acquisition of Young in the Usufructus Gregis' (1961) 12 IVRA, 210-21):

Ulpian, Submits, book 17·.... until the young are allocated and the dead animals replaced, to whom do these young belong? Julian... says that the ownership of them is in suspense, with the result that if they are allocated as replacements, they belong to the bare owner, while if they are not so allocated, they belong to the usufructuary. (1).7.1.70.1.)

In order to become the owner of natural fruits, the usufructuary had to gather or collect them (see 7.2.6). Suppose A is the usufructuary of a fruit orchard belong­ing to B. When A picks the fruit from the trees or gathers it from the ground he becomes owner, but not before. The young of animals may have been an excep­tion: the texts do not expressly require an act of gathering of the newly born, perhaps because of the practical difficulties involved. As for civil fruits, they were acquired on delivery, i.e. on their receipt.

(d) Qiiasi-usiifrnct Over what property could a usufruct be created? It had to be a corporeal thing and something that could not be consumed through use (because of the duty to restore the property substantially unimpaired). Hence, it was not possible to have a usufruct in perishables, e.g. money. The inconvenience of this rule prompted a sencttns consnltiim in the early Empire whereby a quasi-usufruct was allowed in such things, the donee becoming in effect the owner of the prop­erty, with a duty to restore the equivalent value on the termination of the usufruct. This reform (which applied only to usufructs made by will) enabled a more flexible settlement io be made on family members—an innovation of considerable practi­cal importance, and one that was consistent with the overall purposes of usufruct: 'The chief function of the classical usufruct was to provide maintenance for an individual person' (Schulz, Classical Roman Law (1951), 386).

(e) A 'fraction' of ownership The legal position of the usufructuary was paradoxi­cal. He did not have possession, but often he would seem to the entire world as if he were the owner, having limited interdictal protection for his enjoyment of the property and a right to own the fruits. The illusion of ownership would be all the stronger if the usufruct was held for life, since the duty to return the property would then rest on the usufructuary's heirs. This close affinity of usufruct to own­ership was reflected in some classical texts (though the possibility of interpolation cannot be discounted), for example, Paul states:

Paul, Eilicl, book 2: In many respects, usufruct is a fraction of ownership... (D.7.1.4.)

Such an attitude (not untypical of classical jurists) probably contributed to the delay in the recognition of usufruct as a servitude.

6.3.3.2 Usus

Ulpian, Sabinas, book 17: A man to whom a right of use is left is entitled to use but not to take the fruits. (D. 7.8.2pr.)

Usus grew out of usufruct in the late Republic. It was a lesser right, giving the usu- ary the right to use property, but not to keep its fruits, (see Hausmaninger, Gamauf, and Sheets, Casebook, 261-5). The rule concerning fruits was eventually relaxed: it seems that the usuary became entitled to keep as much produce as was required to maintain his household. Unlike the usufructuary, the usuary could not sei] or let out the enjoyment of the property or allow anyone else to occupy it in his place. But a usuary could take in paying guests and lodgers and keep the proceeds. A woman was restricted in her choice of guests:

Pomponius, Sabinus, book 5: However, a woman cannot receive a man as a guest unless he is one who can, with propriety, live in the same house as she who has the right of use. (D.7.8.7.)

If the usus comprised the use of a house, the usuary's family was entitled to reside there. The usuary had to give security in respect of his use of the property and was generally in a similar position to that of the usufructuary, apart from the differences mentioned.

6.3.3.3 Habitat io

This was the right to occupy a house for life, an interest that could be created only by will. Unlike the usuary, the person entitled to habitatio could let out the house. There was some doubt in the classical period whether habitatio was an interest inde­pendent of usufruct and usus, but in the late Empire it came to be recognized as a separate servitude.

6.3.3.4 Services of slaves and animals

This was a special form of usus, confined to the use of slaves or animals. As in the case of habitatio, this right could be created only by will and was not recognized as an independent servitude until the late Empire.

6.3.4 Creation, protection, and termination of servitudes

6.3.4.1 Creation

Praedial servitudes could be created in a variety of ways.

(a) Mancipatio (see 7.1.1) This was important, in early law at least, in the creation of rustic praedial servitudes since they were res mancipi.

(b) Cessio (see 7.1.2) This could be used to create all praedial servitudes, includ­ing those that were res mancipi.

(c) Deductio This occurred if, on the conveyance of land by mancipatio or cessio, the transferor reserved for himself a servitude over the transferred land in favour of the land that he retained:

Gaius, Provincial Edict, book 7: If the owner of two estates conveys one of them to you on the terms that the estate which is conveyed is to be bound by a servitude in favor of the estate which he retains or vice versa, a servitude is held to be legally created. (D.8.4.3.)

(d) Will A testator could leave his land by will subject to a servitude in favour of an adjacent owner. Creation of praedial servitudes by legacy became quite common.

(e) Adiudicatio This could result in the creation of a praedial servitude if a judge, in deciding on the division of common property, held that a servitude should run in favour of part of the land.

(f) Pact and stipulation This method was originally used only in relation to pro­vincial land, since servitudes in such land could not be created by the usual meth­ods. The pact consisted of an agreement between the parties, breach of which resulted in the payment of a penalty fixed by the stipulation. Prima facie, such an agreement could create only contractual, not proprietary rights. But the prae­tors were prepared to treat such arrangements as creating rights in rem, and this led to the eventual recognition of pact and stipulation as a method for creating servitudes. In late law, when mancipatio and cessio fell into disuse and Justinian abolished the distinction between Italic and provincial land, pact and stipulation became the most important inter vivos method for creating servitudes.

(g) Long enjoyment Usucapio was a possible means of acquiring a praedial ser­vitude in early (i.e. pre-classical) law until the method was prohibited in the late Republic by a Lex Scribonia of the first century BC, possibly to secure freedom of ownership. However, in the late classical period, the uninterrupted exercise of a 'right' for ten years (longi tempons praescriptioj came to be regarded as evidence of the acquisition of that right:

Ulpian, Edict, book 53: If a man has obtained a right to channel water by long use and, as it were, by long possession, he is not required to lead evidence to establish the legal title on which his right to the water is founded, for example, to show that it rests on a legacy or some other ground. (D.8.5.10pr.)

The servitude could be acquired in this way provided the right had been exer­cised nec vi, nec clam, necprecario (not through force, stealth, or by permission) as against the servient tenement owner (C.7.22., 33., 39.). In Justinianic law, proof of use for twenty years was required if the parties did not reside in the same province.

As regards personal servitudes, grant through legacy was the most frequent method of creation. Indeed, it was the only method for habitatio and for the use of services of slaves and animals. However, usufruct and usus could also be created by any of the methods applicable to praedial servitudes. In addition, usufruct could arise through imposition by law, as we have seen, for example the usufruct given in late law to a paterfamilias over property held by family members (see 5.1.2.2).

6.3.4.2 Protection

The chief remedy for a person asserting entitlement to a servitude, whether praedial or personal, was the actio confessoria, a modified form of vindicatio. As for the servient tenement owner, he could bring the actio negatoria if he specifically wished to dis­prove the existence of a servitude. The latter action was unusual in that it required the plaintiff to prove a negative, i.e. that the servitude did not exist. In both actions,. recovery was possible for financial loss. Moreover, praetorian interdicts were avail­able in appropriate cases. For example, the praetors protected the exercise of rustic servitudes by granting specific interdicts for each servitude—recognition perhaps of their special status. Praetorian interdicts did not, of course, settle matters of title but simply protected the person who was exercising the servitude. A servient tenement owner, if prejudiced by the grant of such an interdict, could seek to disprove the right to the servitude through an actio negatoria, (see Hausmaninger, Gamauf, and Sheets, Casebook, 232-5).

6.3.4.3 Termination

(a) Praedial servitudes could end in a variety of ways

(i) Destruction This occurred if either the dominant or servient tenement was destroyed, or the latter underwent fundamental change, or the subject matter of the servitude ceased to exist. For example, if a stream dried up permanently, the right of draining water from it would end, although it could be restored if the stream started to flow again,

(ii)Non-use A praedial servitude was lost if it was not exercised for two years. In the case of rustic servitudes, mere non-use sufficed; as regards urban servitudes, the period ran only from the time when the owner of the servient tenement acted as if he disregarded the existence of the servitude. If the dominant tenement owner then failed to object for two years, the servitude was extinguished. The reason for the distinction was that the non-use of rustic servitudes would be obvious since they were 'positive' in nature, e.g. pasturing cattle on someone's land, whereas urban servitudes were generally negative—how do you demonstrate non-use of the right not to have light obstructed? Consequently, proof of non-use in such cir­cumstances initially required evidence of a positive act by the servient tenement owner:

Gaius, Provincial Edict, book 7: Again, suppose your house is subject to a servitude allowing a beam to be inserted, and I remove the beam. I only lose my right if you stop up the hole from which the beam was taken, and keep things in this condition for the prescribed period. On the other band, if you have made no alterations, the servitude remains unimpaired. (D.8.2.6.)

Justinian extended the period to ten years if both parties resided in the same prov­ince, twenty years if they did not.

(iii) Merger This occurred when the dominant and servient tenements were acquired by the same owner.

(iv) Cessio The right to a servitude was lost if it was formally ceded by the domi­nant tenement owner. In addition, rustic servitudes could be renounced by a for­mal reconveyance. In late law, when these methods had become obsolete, praedial. servitudes could be renounced either expressly or impliedly, e.g. by toleration of an act inconsistent with the servitude. The renunciation would bar the dominant ten­ement owner from later asserting the existence of the servitude. Under Jus tinian, denunciation sufficed to terminate the servitude rather than just to provide a bar to its assertion.

(v) Abandonment The abandonment of the dominant tenement did not in itself terminate a servitude in its favour, although it could constitute non-use. What if the servient tenement owner abandoned his property? In principle, nothing changed: the property remained burdened even though there was no one against whom the servitude could be enforced. As regards the duty to support a common wall, the dominant tenement owner could carry out the repairs himself by entering the ser­vient tenement. If he then became owner of the servient tenement through occu­pation of the abandoned property, the servitude would be extinguished by merger.

(b) Personal servitudes could terminate in various ways, some of which were inapplicable to praedial servitudes

(i) Death Since a personal servitude attached to a person and not to property, it followed that it was ended by the death of the holder:

Ulpian, Sabimts, book 17: That a usufruct is also lost by death does not admit of any doubt, since the right of enjoyment is extinguished by death, just like any other right which attaches to the person. (D.7.4.3.3.)

(ii) Expiry of term Apart from habitatio, personal servitudes could be granted for a period less than the life of the holder. The expiry of the period ended the servitude.

(iii) Loss of status As a general rule, loss of status (whatever the degree) ended all personal servitudes, except that habitatio and the services of slaves and animals were not ended by capitis deminutio minima (see generally 4.2).

In addition, personal servitudes could be ended in ways similar to praedial servi­tudes, e.g. merger occurred if a usufructuary obtained ownership of the property subject to the usufruct. Cessio could be used to cede a personal servitude to the owner (under Justinian, an act of renunciation sufficed). Destruction or fundamen­tal change in the property ended a personal servitude, subject to the possibility of restoration, as illustrated by Javolenus:

Javolenus, From the Posthumous Works ofLabeo, book 3: I had the usufruct of a garden; a river covered the garden and then receded. It is the opinion of Labeo that the right of usufruct is restored, as the legal position of the ground itself remained the same throughout. I think that this is only true if the river covered the garden as the result of a flood; if the river changed its course and began to flow in that quarter, my opinion is that the usufruct is lost, as the ground occupied by the riverbed becomes public property and cannot be restored to its original condi­tion. (D.7.4.24pr.)

Usufruct and usus, but not habitatio or the services of slaves and animals, could be lost through non-use—two years for land, one year for movables. Justinian altered the peri­ods to three years for movables, ten or twenty years for land, depending on whether the parties resided in the same province. Hiring out the property constituted use, not non-use.

6.4